Out in the World: Inter-American tribunal finds Jamaica in violation of international law

  • by Heather Cassell, BAR Contributor
  • Wednesday February 24, 2021
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Gay Jamaican activist Gareth Henry. Photo: Courtesy Human Dignity Trust
Gay Jamaican activist Gareth Henry. Photo: Courtesy Human Dignity Trust

Jamaica is known as the "most homophobic place on earth," but that might soon begin to change, much to the excitement of LGBTQ advocates and queer Jamaicans who hope the Caribbean country will truly become "one love."

The Inter-American Commission on Human Rights has found the Jamaican government responsible for violating multiple rights of a gay man and a lesbian, and urged an immediate repeal of the country's homophobic laws. The decision was reached last September but only made public February 17, according to a news release from the Human Dignity Trust, which brought the case.

IACHR's recommendations are nonbinding, but a Jamaican supreme court decision in a forthcoming case seeking to decriminalize homosexuality will be binding.

Gareth Henry, one of the petitioners in HDT's complaint, expressed feeling a sense of justice and vindication in a video produced by the United Kingdom-based trust.

The trust also represented Simone Carline Edwards, a lesbian, in her decade-long case against Jamaica.

Henry, a gay Jamaican man who once led Jamaica Forum for Lesbians, All-Sexuals, and Gays, or J-FLAG, one of Jamaica's leading LGBTQ organizations, called the commission's decision "bold and principled."

"All my life people have told me that who I am and who I love is wrong," said Henry in the video.

"Now, for the first time ever, I finally feel I am right. I'm hoping the Jamaican government, for the first time, will do what is right by the LGBT community," he said, hoping it "signals the beginning of meaningful change for our country."

Victoria Vasey, head of legal at the trust, and who represented Henry and Edwards, along with an international team of pro bono lawyers and support from J-FLAG, praised the decision.

"Their stories are the stories of so many LGBT people in Jamaica that have to be heard and have been heard," she told the Bay Area Reporter February 22.

J-FLAG praised the commission's recommendations in a February 18 news release.

"Their ruling is reflective of the positive wave within local and regional judicial bodies as noted in Belize, Trinidad, and Guyana to affirm and protect the human rights of lesbian, bisexual, gay, and transgender persons in the Caribbean," the organization stated.

"Importantly, the commission presented a menu of options for the government of Jamaica to address the situation faced by the petitioners and others like them who have faced stigma, discrimination, violence and exclusion," it added.

Edwards hopes to be able to return to Jamaica someday.

"It gives me hope that one day these outdated laws will be done away with, and I'll be able to return to my homeland without fear of attack," she stated.

Law and harassment

Three homophobic laws are currently in place in the Offences Against the Person Act 1864: Sections 76, 77, and 79.

The laws criminalize "buggery," defined as anal sex, and "acts of gross indecency" between men privately and publicly. Those sentenced under the laws face a maximum sentence of up to 10 years with hard labor.

Jamaica is one of the nine countries across the Caribbean that still criminalizes homosexuality and has the worst reputation. Time magazine labeled Jamaica the "most homophobic place on earth" due to the atrocious attacks and brutal murders of LGBTQ people.

LGBTQ advocates said that the laws are rarely enforced, but their existence, along with religious leaders and conservatives consistently spreading anti-gay rhetoric, has created a hostile environment that is deadly for LGBTQ people.

Second petition

Another petition was filed with IACHR by the Canadian-based HIV Legal Network on behalf of Christina Brown, identified in documents as T.B.

She hopes the commission's recommendations in the reports will shed light on other cases.

"I think it will now shed more light on cases and show also that there are more people in danger," Brown, 28, a transgender woman, told the B.A.R. in a WhatsApp interview February 22. "There are more people who are actually suffering in Jamaica because of these laws."

Brown is hopeful to visit Jamaica someday in the future. She would love to be able to return home to see her mother and friends again, she said. Right now, she cannot because it is too dangerous.

"The laws are really barbaric," said Brown, who is now a nurse in the Netherlands. "It brings more harm than good."

The petitions in the cases before the commission described brutal events that forced the petitioners to flee the country for their lives during the decade their case was with the commission.

Both cases T.B. and S.H. v. Jamaica and Gareth Henry and Simone Carline Edwards v. Jamaica were filed in 2011.

The petitioners all found safety in Canada, Europe, and the United States.

In Brown and S.H.'s case, the petitioners chose to be identified by their initials for their safety. They filed their complaint while still living in Jamaica. Since then, Brown has revealed her identity.

Henry and Edwards had already left Jamaica when they filed their complaint with the commission.

Brown, S.H., Henry, and Edwards all described the horrors they faced that drove them to leave Jamaica in the reports. Their experiences are only a slice of what LGBTQ Jamaicans face on a regular basis.

Brown described being forced to leave home when she was 17 years old in 2011, after she and a friend were threatened by a mob carrying bottles and sticks.

They took shelter in a shop. Officers came and escorted Brown and her friend to the police station. The police threatened charges against Brown and her friend and abused and harassed them consistently for eight hours, Brown said.

During their detention, they overheard the some of the officers say, "let us kill them here as if we kill them, nothing will come of it," according to the report.

After leaving home, Brown moved constantly. She found help in Kingston, Jamaica's capital. A lesbian, Yvonne Artis, provided a safe home and has supported her journey ever since. J-FLAG and Maurice Tomlinson, a Jamaican LGBTQ activist and lawyer at the network, helped her find asylum in the Netherlands in 2012, she said.

Like Brown, Henry was chased a mob of approximately 200 people chanting gay people must be killed. The attack was the second and largest mob assault he experienced after years of abuse by his family, community members, gangs, and police, according to the commission's report on the trust's petition.

In one incident, the police beat him so severely he had to seek medical attention. Henry finally sought asylum in Canada in 2008. He is now a senior case officer helping LGBTQ people like him escape persecution and violence at the Rainbow Railroad.

Edwards survived being shot multiple times by two gang members outside her home, along with two of her brothers, one whom is also gay, in 2008. She lost one of her kidneys and part of her liver in the incident.

According to the commission's report on the trust's complaint, police only arrested one of the assailants and later released him. The second gunman was never apprehended.

Edwards fled Jamaica to the Netherlands where she was granted asylum in 2009. She was forced to leave her daughter in Jamaica for two years before they were reunited.

Her gay brother was also granted asylum in the Netherlands.

Other violent incidents have also been reported in Jamaica. In 2009, gay British diplomat John Terry was found strangled in his home. A note was left by his body with "homosexual" in Jamaican slang written.

Families who support their queer family members are subjected to the same attacks, according to the commission's report to the trust. Sometimes, an entire family is forced to claim asylum in another country.

Experts said that a majority of the LGBTQ Jamaicans is afraid to report crimes perpetrated against them in fear of discrimination, retaliation, or inaction, similar to what Brown experienced.

If they can, like the petitioners, many queer Jamaicans flee the country, seeking asylum in LGBTQ-friendly countries.

J-FLAG recorded around 400 human rights violations against queer Jamaicans since 2011, according to the trust's release.

A decade fighting for justice

On February 17, the commission released the trust's 25-page report for Henry and Edwards' petition against Jamaica.

IACHR responded to Brown and S.H.'s petition, but it did not make it public.

AIDS-Free World and the network released IACHR's 31-page report about Brown and S.H. also published last September, following the commission's release of the trust's report.

Brown and S.H. were represented by Tomlinson, AIDS-Free World, and a legal team in Jamaica.

The trust and the network claimed Jamaica's government violated up to 10 human rights abuses, including rights to humane treatment, equal protection before the law, privacy and freedom of movement and residence, under the American Convention on Human Rights.

Jamaica ratified the convention in 1978.

The commission found that Jamaica violated the rights of the petitioners in both cases.

The Jamaican government delayed the release of the trust's report for a year, said Tomlinson.

In its scathing reports, IACHR instructed Jamaica to decriminalize homosexuality and enact laws protecting LGBTQ people.

The commission also advised Jamaica to provide reparations for violating the petitioners' human rights in both cases.

It also recommended Jamaican officials to ensure measures are in place to prevent, investigate and punish incidences of violence against all LGBTQ people and maintain statistics for hate crimes.

Additionally, the commission recommended Jamaican officials to provide LGBTQ sensitivity training for government officials and professionals in law enforcement, security forces, and the judicial system.

Jamaica has yet to implement any of IACHR's recommendations.

The country's officials also did not respond to the commission's request for comments, according to the trust.

Jamaican officials did dismiss the network's case in its response to its petition claiming it had no "merit" among other claims.

The commission sent a stern message to Jamaica.

It stated in the report the law "generates a culture of hostility, discrimination, and serious violations against LGBTI persons," in both reports supported by numerous decisions, and recommendations from reports and cases it and other bodies and courts documented about LGBTQ Jamaican's situation during the last decade.

If Jamaica's government continues to ignore the commission's recommendations, LGBTQ activists have options to seek justice.

LGBTQ advocates can use the report to pressure on the country's officials or launch legal cases against the country and at the Organization of American States, said Tomlinson and Caribbean gay activist and lawyer Leonardo "Leo" Raznovich..


Jamaican conservatives downplayed the commission's recommendations.

Anti-gay rights advocate Wayne West, chairman of the Jamaica Coalition for a Healthy Society, a Christian organization, accused the international body of being an LGBTQ organization, stating it was friends with Jamaica's local LGBTQ community in the Weekend Star, the Jamaican Star's weekend edition.

"The IACHR is basically a LGBT advocacy group of persons who share the same realism and anarchic world view, like other LGBT advocates," West told the Star.

Justice Minister Delroy Chuck diplomatically told the paper that decriminalization should be put to a referendum.

Late last week, LGBTQ advocates praised the commission's recommendations and called for Jamaica to decriminalize homosexuality.

Activists and lawyers working to strike down Jamaica's anti-gay laws believe the commission's decision will have a major impact throughout the region.

Many of the island countries — Barbados, Dominica, Grenada, St. Lucia, St. Vincent and the Grenadines, St. Kitts and Nevis, and Antigua and Barbuda — have similar laws.

Tomlinson has also filed petitions with the commission against Barbados' buggery law. The commission has not heard the petition yet.

He hopes it will not take the commission another decade to decide on the case.

In a statement to the B.A.R. OutRight Action International Executive Director Jessica Stern said she was "thrilled" with the commission's report.

She said Jamaican authorities, along with the commission, could have a "significant ripple effect" on the decriminalization efforts underway across the Caribbean, setting a precedent that would be difficult to ignore.

"The decision will be felt beyond the borders of Jamaica," said Stern. "Over half the countries in the Caribbean region continue to criminalize same-sex relations."

Vasey said that the commission's conclusion that Jamaica's anti-gay laws contradict human rights "is incredibly powerful."

"I think it moves the conversation forward and it mounts pressure for the government to do the right thing," she said, adding, "the regional impact of this case should be enormous."

J-FLAG is seeing signs of acceptance of LGBTQ people in Jamaica. The organization found a 5% increase in tolerant and positive attitudes in a 2019 survey conducted by the organization compared to 2015, the trust sited in its release.

The organization also noted the report found that tolerance was higher among politicians than the general public.

March hearing

Advocates hope that J-FLAG's findings, along with IACHR's recommendations, will help Tomlinson's challenge to Jamaica's buggery law next month.

The Supreme Court of the Judiciary of Jamaica will hear Tomlinson's case March 8.

"It is very, very persuasive," Tomlinson said. "Now, my case on the 8th will hopefully have more strength because of that decision."

Tomlinson sued Jamaica's attorney general in a challenge to strike down the buggery law in 2015.

Tomlinson is nervous. Last week, the court allowed two anti-gay activists — United States-based Linda Harvey of Mission: America and United Kingdom-based Rodger Kiska of the Christian Legal Center — to submit reports to the court as expert witnesses on behalf of Hear the Children Cry Limited, a conservative group in Jamaica.

Harvey did not respond to the B.A.R.'s request for comment by press time.

Tomlinson is concerned religious organizations will try to "swamp the court," reiterating the same argument and the court will allow it because "the Jamaican evangelical, the right-wing extremists have infected every level of society of Jamaica," he said.

"They are bad news," said Tomlinson. "They are very powerful."

Tomlinson is gathering his own list of experts, including HIV, public health, sociologists, and other professions to submit testimonials to the court.

Tomlinson does not trust the system due to the pervasiveness of the religious groups and homophobia in Jamaica. The judges go to church and hear the anti-gay rhetoric and it might be playing in the background of their minds as they make their legal review of his case, he said.

Lawyers will argue the case virtually due to the ongoing coronavirus pandemic.

He launched a petition with All Out February 22.

"I keep hoping for a breakthrough," Tomlinson said.

Vasey said the commission's recommendations are something the "court is unable to ignore."

"The message is clear. The message is powerful," Vasey said.

Tomlinson's supreme court case is one of two cases he has filed against Jamaica.

Tomlinson also has a petition at IACHR challenging Jamaica's ban on same-sex marriage. The commission has yet to hear it.

To sign the petition, click here.

To read the two IACHR Jamaica reports, click here and here.

To read Tomlinson's Supreme Court challenge against Jamaica, click here.

Got international LGBTQ news tips? Call or send them to Heather Cassell at WhatsApp: 415-517-7239, Skype: heather.cassell, or [email protected]

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